Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report

with 2 comments

Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.

Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.

The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.

The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.

The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.

The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.

A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.

I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)

But it did create a structure which has lasted more or less intact for 40 years.

Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)

2 Responses

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  1. I too have been wondering what has happened to this proposal and, with some trepidation, what its composition and TORs will be. In 2019, I was privileged to lead a team of 12 commissioned to write the first complete Criminal Justice Policy for Rwanda. The policy runs from crime prevention to release from imprisonment and pretty well everything in between. It was finished during the first lockdown and has now been adopted by the Rwandese Cabinet.

    Most people only know two things about Rwanda: genocide and gorillas but it is a highly distinctive country very different from its neighbours in East Africa. The story of the recovery of the legal profession and the judiciary from their utter destruction in 1994 is the most heroic story in modern legal history.

    I learnt so much. The complex amalgam of Civilan and Common Law criminal procedure was fascinating but the real challenge to a European mind was to learn to understand, respect and value the informal systems of criminal justice which manage at least 70% of crimes. These were subtly linked to community policing and new norms, particularly in relation to sex crime, needed to be woven in. Imprisonment, the punishment introduced by colonialism, had been enthusiastically embraced giving Rwanda one of the highest rates of imprisonment in the world. New principles of diversion and alternatives to imprisonment have been proposed.

    Relating this experience to (one hopes) the forthcoming Royal Commission, I reflect on three primary issues. Firstly, that the terms of reference are broad enough to cover all the interlinked criminal justice procedures
    including policing and should not be strongly ideologically coloured. Secondly, that it is best to start with a set of clear principles and use them as touchstones during the detailed examination of each stage of the process. Thirdly, the importance of research. We conducted four research projects in pursuance of the Rwandan policy including a crime and victimisation survey. We would like to have done more. There is a dearth of criminal justice research in Rwanda and even the little we did, uncovered – as all good research does- phenomena unique to the jurisdiction. Whoever is picked to lead the Royal Commission should fight for a strong research budget.

    Nick Johnson

    January 10, 2021 at 12:14 pm

  2. Thank you for this really interesting comment

    lwtmp

    January 10, 2021 at 5:28 pm


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